Permit me to recommend three articles. Each goes well beyond Trump but Trump is an engine of each.

Timothy Snyder, a professor of history at Yale who wrote The Road to Unfreedom, reviewed Benjamin Carter Hett, The Death of Democracy: Hitler’s Rise to Power and the Downfall of the Weimar Republic. Comparison with contemporary America are uncanny. Snyder ends his review saying “The conclusions for conservatives of today emerge clearly” from this history of the fall of German democracy: “Do not break the rules that hold a republic together, because one day you will need order. And do not destroy the opponents who respect those rules, because one day you will miss them.” But recent events suggest little respect for those lessons.

Kori Schake, deputy director of the International Institute for Strategic Studies, wrote The Trump Doctrine is Winning and the World is Losing. Summarizing a magnificent article is difficult but for me the kernel was that “if the United States doesn’t sustain” cooperation among the world’s democracies, “a rising power will eventually force it to defend its interests or succumb.” That’s been the pattern of power transitions except the transition from Britain to the United States, “an exception born of their democratic similarities, and one unlikely to be repeated between the United States and China.” At this point the U.S. handed over leadership in Asian trade to the Chinese with our withdrawal from the Trans-Pacific Partnership, and weakening alliances among democratic nations allows China to intimidate weaker countries and reshape Asian geography and maritime rules without cost. Moreover, the costs of the American led world order were small and declining, especially by comparison to the benefits.

And David Sanger, national security correspondent for the Times and author of the forthcoming The Perfect Weapon: War, Sabotage and Fear in the Cyber Age, after exploring the extent of cyber-sabotage and American vulnerability, shows the cost of not dealing with growing Russian capability because of its political implications.

Will America choose another Roosevelt to pull us out of this deepening vortex of destruction or will it choose a Hindenburg to hand the reigns to a beast preparing to roast, gas and kill us all?

Trump says and does so many things which are parts of much bigger issues, that it’s nearly impossible to keep up.

He has us discussing whether he’s going to fire one guy or the other, who does or doesn’t deserve to go;

Whether Trump will make war or peace and what country deserves our friendship or enmity;

Whether we will honor or dishonor treaties that he claims other countries violate, though no one else shares that view;

Whether he has a policy about infrastructure based on his saying things should be built or does not have a policy based on the empty line in his budget;

Whether he has conspired with an enemy of the United States, and whether the Special Counsel’s investigation should be shut down because he tells us that he did nothing that should be investigated, and whether it matters that he didn’t give Hillary that privilege.

It makes the head spin.

We’re heading in just a few years to an economy in which most of us won’t have steady jobs, pensions or unions to support us. Instead it’s everyone for himself all the time in the gig economy. Republicans insist that government and regulation are almost always bad. Who’s left to have our interests at heart? Reminds me of pastor Martin Niemöller on being sent to the concentration camps by the Nazis, “Then they came for me—and there was no one left to speak for me.” Is Trump for or against the workers when he says nothing about union rights and supports no change in working conditions other than tariffs for a couple of industries. And is Trump for or against a livable environment when he takes every possible action to degrade the earth, air and water?

We have been at war since 2003 but what do we have to show for it but body bags and amputees. Will Trump send more troops to die in the Middle East, or is he just bluffing to make people back down? But attempted bluffing will be ignored by people across the globe who have all lost confidence in what he tells us because we need only wait a short while for him to say the opposite.

Trump wants the Special Prosecutor, Robert Mueller, to stop investigating whether Trump or his campaign collaborated with the Russians in order to win the White House, or wants to fire Mueller and hire someone else who will close the investigation? Does it matter whether criminal defense lawyers may want their accused clients to have a right to choose their prosecutors and put a time limit on investigations, especially for such difficult prosecutions as those of organized crime, corporate finagling and international financial transactions. Can they cite the president for that right?

It’s enough to make one’s head spin. But there’s a way to simplify it. Forget all the separate issues until we have a president that actually cares about them, and focus on impeachment. Every one of those issues bears on impeachment, either because they relate to obstruction of justice, selling America out, self-dealing in foreign affairs or rewarding his favorite autocrats and wealthy friends at the expense of the people he swore to protect. His high crimes and misdemeanors easily exceed what Clinton was impeached over, threaten more damage to the republic than the misbehavior for which Andrew Johnson was impeached, and for which Richard Nixon resigned before the House could vote on articles of impeachment. Bring all these issues back to the fundamental question of impeachment. Dirty Donald, lock him up.

— This commentary was broadcast on WAMC Northeast Report, March 20, 2018.

Many of us have written about the threat to American democracy. Actually that list is extensive and goes back a number of years. When I wrote my own book about the Roberts Court, I drew on that literature and applied it to the behavior of the Supreme Court. My hope was that if enough of us wrote about the problem, it would begin to sink in that something has to be done.

Instead we have Trump and the Republican Party trying to shift as much wealth as possible from the majority of Americans to a small fraction of the wealthiest 1 percent – precisely one of the most powerful causes of the breakdown of democracy. And Trump has been attacking the bulwarks of democracy – a free press, independent judges and prosecutors, an independent FBI and Justice Department, nonpartisan election machinery, and protection against domestic and foreign interference in elections. He does all this in the service of the effort to shift more and more money from the masses to the wealthiest, reflected in massive shifts of money to those who already have most of it and talk of attacking entitlements, Social Security, Medicare and other programs which compensate ever so little for the government’s favoritism toward the rich.

Bruce Bueno de Mesquita describes it in The Dictator’s Handbook but so does the story of Robin Hood and the Sheriff of Nottingham. The more the dictator takes from the masses the less power they have and the easiest it is to control them. The more the dictator gives to the wealthiest, the more they depend on and support him. In other words, turning democracy into dictatorship is a process of robbing from the poor to pay the rich, weakening the masses and securing the loyalty of the wealthy.

Many scholars have mapped the process as one in which the wealthiest increasingly circle the wagons against the masses, gain control over the election machinery, and corrupt the entire system that used to be democratic. The more wealth becomes concentrated, the more impossible it is to allow anything approaching free and fair elections. The process builds on itself in a corrupt and corrosive way. The economically ordinary people whom Trump and his wealthy supporters have convinced that they should depend on him are the people who will be used, dumped and double-crossed. And their erstwhile support for the fraudulent leader will suppress the rest of us.

The last time the disparity got this bad it led straight into the Great Depression of the 1930s. They are not independent facts. By stripping wealth from the masses, the elites stripped out the consumer economy on which they depended. The situation was sufficiently drastic that many were urging Franklin Roosevelt to assume dictatorial powers, and indeed dictators like Huey Long in Louisiana were poised to make a run for the presidency, while racists commanded the airwaves. We were lucky. Roosevelt was a wealthy patrician who was committed nevertheless to democracy. He saw the threat and worked hard to avert it. The Supreme Court fought him then as it has been fighting to deepen the crisis now.

We were lucky. Scholars have shown that the behavior of elites in crises like this is crucial. We need people in Washington for whom the survival of democracy in America is more important than partisan politics or dreams of turning America into a wasteland of serfs propping up the great ones. That this country had Washington, Lincoln and Roosevelt at crucial times is amazing. May our luck survive Trump.

— This commentary was broadcast on WAMC Northeast Report, January 23, 2018.

In a week, we will be voting to decide whether to call a constitutional convention for the State of New York. The powers of the Convention would be wide open. Before going further, it is important to look at the provisions for calling the Convention:

in case a majority of the electors voting thereon shall decide in favor of a convention … the electors of every senate district of the state … shall elect three delegates at the next … general election, and the electors of the state voting at the same election shall elect fifteen delegates-at-large.

Let me repeat one crucial phrase, “the electors of every senate district of the state.” The New York Senate as we all know has been gerrymandered for many years to maximize Republican control of the Senate. Although the increasingly blue hue of our state politics has forced them into coalition with the so-called Independent Democrats, the NY Senate remains much more conservative than the Assembly, and not fairly representative of the people of the State. Everyone should be represented. Everyone’s ideas count. But everyone should be represented fairly and their ideas should be considered by a body that represents us fairly. Since the Convention would be shaped only by senatorial districts plus a few delegates chosen at large, I would not be willing to trust our future as a state to such a body.

You may have repeatedly heard me talk about gerrymandering. Many of us who have been fighting gerrymandering for years have continued to fight it regardless of who is the temporary beneficiary. Republicans should not have to accept a convention gerrymandered toward Democrats any more than Democrats should have to accept a convention gerrymandered toward Republicans, as it is now. Frankly, that alone determines my vote. End gerrymandering first and than we can talk about constitutional change.

The current New York State Constitution was adopted in 1938. In other words it was adoped near the end of the Great Depression. As such it had important provisions with the great mass of us in mind, not just the one-tenth of one percent who often think everything should favor them. That too makes it important to protect this Constitution. Of course it is not perfect. And when we get rid of gerrymandering, we may be able to fix it. But now losing this Constitution would be too dangerous.

Moreover, much that is wrong with this Constitution has nothing to do with its language and everything to do with the interpretation of the Courts. Just as I would not jettison the U.S. Constitution because of Scalia’s misreadings, so I would not jettison the 1938 New York Constitution because the courts screwed it up.

To the extent that some people believe some provisions could be improved, it would be sufficient to propose those specific improvements to the people of this state without using them as a Trojan Horse to threaten the entire document.

If any more reasons are needed, there is no reason to believe the delegates will be a step up from the legislature which already has the power to propose amendments. And I would be much more comfortable if the powers of any convention elected to revise the Constitution were limited to matters carefully defined in advance so that we could know how large a threat they pose.

I believe the people of this state would be wiser, safer and better off voting no.

— This commentary was broadcast on WAMC Northeast Report, October 31, 2017.

Driven by the Tea Party, Republicans gave us a Congress that hasn’t been able to get much done. Saying less government is better, they take credit for getting nothing done, and leave immigration, tax policy, and health care to fester. It took the Democrats to make a deal with Trump to open the spigot even on hurricane relief.

Republican scorched earth policy is scariest for the lesson we take from it. For some of us the lesson is partisan – the other party must be defeated, fast. But for some Americans the lesson is that democracy doesn’t work, isn’t worth standing up for, honoring and protecting.

Many Americans have seen nothing but gridlock. Unlike the ways the parties worked from the 30s through the 80s, we’ve been dominated by gridlock since the mid-90s, especially when Republicans controlled Congress and Democrats were in the White House. Newt Gingrich and then the Tea Party made gridlock both their goal and tactic – if government can’t get anything done, then there is less government, never mind all the things for which we depend on government.

Republicans literally shut the government down under Clinton, only to discover that the American people didn’t like it because, from fixing potholes to carrying the mail, from sending out Social Security checks to keeping the skies safe to fly, government does lots of things we depend on.

By the mathematical logic of a majority of a majority, a minority in Congress could rule the Republican caucus and that caucus could stop everything so long as they agreed to stick together. So that minority of Congress gives us gridlock. We often talk about minority rights. But we are experiencing something else, not democracy, but it’s opposite, rule by minorities.

Elsewhere, dissatisfaction with democracy paves the way for dictatorship, in places like Syria, Iraq, and much of the Middle East and Eastern Europe. What replaces democracy is not some kinder, gentler, godly leader but kleptocracy, the rule of thieves, taking as much as possible from everyone to fatten their own pockets. Want to start a business, give the tyrant a cut. Want to export or import, the tyrant gets a cut. Courts aren’t in the business of dispensing justice; they’re in the business of looking at who is higher in the hierarchy. That’s why the flow of refugees isn’t from democracy to tyranny, but from dictatorships to freedom and democracy.

Democracy has a key secret. We can argue about who was wrong about Vietnam, Iraq, Obamacare, whatever – the people make painful mistakes – but a democratic people have the ability to vote the bastards out. Generally that gets the people better results than passing the reigns to dictators who can twist everything for their own benefit while sneezing at the people’s misfortune.

Democracy is not to be sneezed at. It is the singular American contribution to this world and we must protect it from foreign powers and political bosses who would control the people by gerrymandering, manipulating the census, keeping people from the polls or not counting their votes, We must protect it from fraud, from lying to the public, and from autocrats who claim they can fix everything if we’d just let them do whatever they want, autocrats who would have us end up like Venezuela under Maduro, Turkey under Erdogan, or like Hungary, Syria or Iraq and from so-called leaders who claim the rules don’t apply to them. We must protect it for ourselves.

— This commentary was broadcast on WAMC Northeast Report, September 12, 2017.

First remember that democracy matters. No human institutions are perfect but democracy makes it possible to remove officials without going to war. Democracy doesn’t mean anyone alone can make good things happen. Democracy reflects the collective power of people. Collectively, if the rules are followed that protect speakers, publishers, candidates and fair elections, democracy gives us the possibility – though nothing is certain – of throwing the bastards out. That’s important.

The survival of democracy depends on leaders, institutions, and the circumstances that bring out the best and worst in us. What chance do we have?

We should have been warned when Trump repeatedly expressed admiration for dictators in Russia, the Near East and Eastern Europe, when Trump invited an enemy to break into a candidate’s email and interfere in an American election, and suggested his supporters use their “Second Amendment rights” to put him into power. We should have been warned when Trump put people with strong ties to hostile powers at the top of his Administration and gave them access to American military and intelligence secrets. We should have been warned when Trump put an attorney hostile to justice in charge of the Justice Department and installed many military leaders in his government. We can’t rely on this casino mogul turned would-be strongman to preserve American democratic government.

It’s unclear whether our institutions will protect us. The Turkish military protected Turkish democracy for a century, but that tradition is now gone. Members of Trump’s party control both houses of Congress where their commitment to their party compromises their commitment to democracy. Congress seems unlikely to protect us. The Court is dominated by members of the President’s party and their treatment of the Constitution’s due process clauses has been more a threat to decent citizens than a limitation on the powers of would-be dictators.

The circumstances in which we find ourselves have ripped democracies apart across the globe. The concentration of wealth and power we have long seen and condemned abroad has become a reality here. The more that wealth and power are concentrated, the more that the wealthy and powerful circle their wagons to protect their ill-gotten gains against the rest of us, spewing nonsense about supposed trickle-down economics as if it were fact and counting on people’s gullibility. Concentration also makes people desperate, and desperation fuels the mirage of lies and makes too many of us complicit in our own subjugation.

Without reason to rely on the leaders, institutions, or circumstances, that leaves us. Can we square our shoulders and steady our minds to resist the steady babble of nonsense and not just listen to the words but watch what those in power are doing?

When you look at behavior instead of giving a pass to the mogul in the White House, you begin to notice that his actions belie his words. He has no sympathy for coal miners or others who have been shunted aside by changes in the economy but only to protect his friends’ wealth and power from us. Birnie put his finger on the problem and Trump now aggravates the concentration of wealth and power that are taking apart the lives we thought we’d built. So-called “free markets” protect the marketeers. So-called “trickle down economics” protect the concentrations from which the trickles are supposed to flow. And the flood of inconsistent tweets boggle the mind and conceal the reality.

Can we uncover the deceptions with strong minds and clear eyes while the casino mogul in the White House gambles our birthright.

— This commentary was broadcast on WAMC Northeast Report, June 13, 2017.

I’d like to give my spleen a break for a week and talk about some of the dynamics that are polarizing America, that neither side can solve because the problem is structural. Law has contributed with crucial changes regarding political parties, the media, the draft and residential segregation (which Brown did not prevent). I’d love to hear good suggestions for countering the polarizing effects of those legal changes.[i]

Primaries originally broke up state monopoly parties. We’ve long known that primary elections push candidates apart to appeal to their parties’ most committed voters. After 1968 the primary system became the exclusive method for nominating presidents, pushing the parties further apart.

In broadcasting, three networks controlled radio and television until Congress changed copyright rules, allowing cable television expansion to over a hundred channels, and niche broadcasting to separate audiences. The courts and Federal Communications Commission also killed the Fairness Doctrine, which required broadcasters to present a balanced presentation of controversial issues of public importance. Then Congress made it almost impossible to hold any internet company responsible for even the most outrageous falsehoods published on their systems. Those media law changes made it unnecessary to pay any attention to opposing views. Plus, instead of limiting damages for defamation, as Justice Marshall suggested, the Court gave media much more complete protection.

At the Federal Housing Administration, officials long refused to insure mortgages to African-Americans, regardless of income. That prevented African-Americans from joining the march to the suburbs, drove disinvestment in their existing neighborhoods, and pushed us apart.

The end of the draft has been huge. The military had drafted people without regard to wealth, class, or geography. President Teddy Roosevelt said “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.”[2] And indeed the soldiers came home with lifelong buddies from all over America. Arguments about the Vietnam war ended the draft and led to the so-called volunteer army, which doesn’t reach the same cross-section of America. That changed our attitudes toward each other, and how polarized we’ve become.

There were good reasons for the changes to the nominating system, the media, and the draft but the combined price has been to polarize us. Polarization matters. It blocks our ability to listen to each other, even to care about each other. And if we can’t care, the very notion of public welfare, what’s good for all of us, seems like self-pleading.

The market can’t pick up the slack; it fails in many ways. Worse, for market ideologues, democracy, the major counterforce to the market, seems illegitimate. In other words, the stakes are huge – the legacy of our Revolution, our Constitution, and our collective welfare. Somehow, we have to break down polarization, and restore what used to bring us together or find substitutes – for public schools, military service, media that reached across aisles, and integrated housing and communities.

I doubt the cat can be put back in the bag, especially in this polarized environment, but I’d love to hear good suggestions.

— This commentary was broadcast on WAMC Northeast Report, January 31, 2017. For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).

[1] For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).

[2] Quoted in John Whiteclay Chambers, II, Conscripting for Colossus: The Progressive Era and the Origin of the Modern Military Draft in the United States in World War I, in The Military in America from the Colonial Era to the Present 302 (Free Press, Peter Karsten, ed., rev. ed. 1986).